Porn Copyright Trolls Argue That Verizon Should Be Held In Contempt Of Court For Trying To Protect Its Users

from the privacy-schmivacy,-we're-trolling dept

Three of the bigger porn copyright trolls out there, Patrick Collins, Malibu Media and Third Degree Films, have teamed up to make a court filing arguing that Verizon should be held in contempt of court for failing to cough up the names of account holders based on the trolls' list of IP addresses. As you're probably aware by now, hundreds of thousands of people have been "sued" by copyright trolls, but not actually taken to court. The strategy is just to file a lawsuit and force ISPs to identify account holders, then bombard those account holders with threatening letters (and calls and emails) saying that they will be sued if they don't pay up (often a few thousand dollars). Verizon, like many other ISPs, has fought back against these demands for info on a variety of grounds -- including improper joinder (i.e., that the cases improperly lump together multiple people who had nothing to do with one another in an attempt to keep costs to the trolls down). These claims of improper joinder have been somewhat effective in getting a lot of these cases thrown out -- but usually those claims are raised by the account holders themselves, rather than the ISPs.

These three trolls have teamed up to argue that Verizon should shut up and hand over the names, claiming that it has no standing to object, given that it's not a party in the case. They also claim that even if Verizon can argue misjoinder, the argument is not valid (which is laughable considering how many courts have agreed that it's perfectly valid). Then they try to chop down every other argument from Verizon -- who actually has a really strong history of protecting subscribers against copyright threats. In fact, the trolls use this history against Verizon -- claiming that their victory nearly a decade ago, against the RIAA's attempt to use subpoenas to identify users without filing a lawsuit, shows that as long as they've filed lawsuits, they should have a free pass to identify the account holders named.

The really amusing part is the trolls' response to Verizon's point that the trolls have failed to show that the discovery would be used for the "proper purpose" of litigation. That's because it won't be. Everyone knows that the information will be used to try to force people into settling, and not to file lawsuits. But the trolls claim this is just dandy:

To the contrary, and as argued above, the “purpose” of the discovery is entirely proper: to
obtain information identifying unknown Doe Defendants infringing Plaintiffs’ copyrights “in order to consider whether to name and serve them as defendants.”

Note the careful choice of words. They don't say that they're asking for discovery in order to actually sue, but to "consider" whether or not to sue. Meaning, of course, that they're extremely unlikely to file an actual lawsuit and are more likely to threaten account holders to demand a settlement. Hopefully the court sees through these attempts by these trolls to force discovery where it's clearly not appropriate.

Hey guys, stupid question here: let's say the porn trolls actually do bring a case to court. They do have to play the video, or at least a snippet of it, in the court-room as evidence, don't they? And if so...what if someone were to bring a child as part of the audience? Would the porn troll effectively be blocked from showing their movie, and without it as evidence, would the case fall apart?

Sounds like a good tactic for the future, claim you have the evidence of wrongdoing, refuse to present evidence that you do, but insist that it is your right to obtain the personal information of thousands of people.

Why do criminals take the time breaking the law to steal identities when the law gladly helps them?

Re:

Jonder or now joinder: while you can't have both, there is no need to take sides.

Verizon, like many other ISPs, has fought back against these demands for info on a variety of grounds -- including improper joinder (i.e., that the cases improperly lump together multiple people who had nothing to do with one another in an attempt to keep costs to the trolls down). These claims of improper joinder have been somewhat effective in getting a lot of these cases thrown out -- but usually those claims are raised by the account holders themselves, rather than the ISPs.

That's because Marc Randazza is not seen anywhere on the horizon here. Marc Randazza, who affirmatively states that the joinder is proper, and I'm a "bit paranoid" when I blow the whistle trying to draw attention to the fact that MJR creates a dangerous precedent, undoing the work of dozens other lawyers and question an almost established caselaw.

Let me be clear. Randazza/Rushie's motion in the bellwether trial is brilliant, yet it has one dangerous proposition. It is OK to call out trolls' contradiction (you can't claim proper joinder and then sue an individual in a derivative lawsuit without the previously and properly (according to the troll)essential parties.

But there is no reason not to stop there. There is no reason to take sides, declaring bittorent swarm joinder theory absolutely correct, securing further mass bittorent cases, most of which are effectively dead when all but one Doe is severed.

Re: Jonder or now joinder: while you can't have both, there is no need to take sides.

Let me be clear. Randazza/Rushie's motion in the bellwether trial is brilliant, yet it has one dangerous proposition. It is OK to call out trolls' contradiction (you can't claim proper joinder and then sue an individual in a derivative lawsuit without the previously and properly (according to the troll)essential parties.

FWIW, I think that joinder is clearly improper, but if you actually listen to Randazza his points concerning joinder do make some sense. There is one "benefit" to having joinder. In such cases, the maximum award is $150k for willful infringement -- ACROSS ALL MEMBERS. That means you can't hit each of them up for $150k. Just the total of all money made from everyone joined can't go above that (and only that high if it's willful).

When you think about it, that actually suggests trolls might not want to use the joinder argument as it could significantly limit their upside.

Re: Re: Jonder or now joinder: while you can't have both, there is no need to take sides.

but isn't that already built into copyright law?
That the award of "damages" is per work not per infringment, per person, per phase of the moon.

The problem is with all of the NDA's used in these cases no one know how much has been collected in settlements, and it is high time that a court demand an accounting of how much they have collected per work infringed and start enforcing the limit as intended.

For people who scream for enforcements in the courts for infringement, you all seem to scream just as loud when a judicial procedure is initiated. Why not simply be honest and admit you oppose any form of copyright enforcement?

Re:

It's not copyright enforcement if what you're doing is suing a bunch of random IP addresses and hope the stigma of pornography shames them into paying up, regardless of guilt or lack thereof. John Steele's initiative against Comcast, last we've heard, hasn't gone anywhere yet.

When your trials actually get anywhere, and the right people, you let us know. Anything less than that is absolute horsecrap.

"The strategy is just to file a lawsuit and force ISPs to identify account holders, then bombard those account holders with threatening letters (and calls and emails) saying that they will be sued if they don't pay up (often a few thousand dollars)."

In general, the recipients of the letters generally *have* been sued. They just haven't been specifically identified by name in the suit (other than "John Doe") or served.

Re:

Better nit to pick, they claim that the owner of the ip address at the time was the infringer. Assumes facts they can not prove, but makes their case read better to a Judge. There is caselaw that an IP address != a person, but they persist in painting the account holder as the guilty party.

And if the Does were actually sued, they would have standing in the courts and Judge Howell and a few other Judges have rules Does have no standing before the court until they are named. So its a great catch 22, someone is seeking the details of your account, but you have no right to try and stop it until your named... oh and the odds of you being named... you've got a better chance of being hit by lightning.